After forty years of serving as a judge, I still ponder and reflect as to whether our judiciary is truly independent or not.

Sixty five
years back, the nation became independent and these past sixty five
years it has spent in knowing as to whether the judiciary has become
independent or not. Kindly tell me as to who had to remain in the
doldrums throughout this age long period; the nation or the judiciary.

Two and a half
year back, I was accorded a full court reference on the eve of my timely
retirement from the Supreme Court of Pakistan. Allow me to repeat, at
least, what the memory retains.

I had said that
despite the fact that the term “independence of judiciary” is a jewel
in the crown of the constitution, yet it is a misnomer. The
independence, in fact and in practice, is referable not to the abstract
idea but to the judges who constitute the judiciary. If judges are
independent, honest, fair, God fearing and blessed with judicial
approach toward the lis pending before them, the judiciary is bound to
be independent. If the judges are dependent, dishonest, unfair, boss
fearing and infected with a whimsical approach towards every lis that
they come across, the judiciary is not independent, rather permit me to
say that such like is not a judiciary at all.

Mostly, the
independence of judiciary is referred to becoming independent of the
dictates of the government. No doubt this is one of the requirements but
not the absolute in itself. The past experience from various countries
and even from Pakistan has shown that apart from the government,
effective influence can be exercised by the politicians and the media.
To achieve independence, judges have to defend themselves on all the
fronts which, by now, has become much more difficult.

Lord Denning, a
famous judge of England, when asked as to what might be the qualities
of a good judge, replied tersely; “Above all, a good judge must be a
thorough gentleman and if he know a bit of law, all the better.” This
small sentence provides the complete context. Gentility cannot be
acquired by becoming a judge. It is something inherent in your
personality. It is the outcome of your background. Who you are? How your
parents brought you up? What type of education you received? What type
of atmosphere surrounded you when you were in the process of learning,
perceiving and conceptualising? What teachings you received about
religion, morality, fair play and fellow beings? Judges are necessarily
influenced in the decisions they make, by their upbringing and
experience. To make this assessment is the job of those who are
shouldered with the responsibility of selecting the judges. You can look
around everywhere and nationwide. Only a gentleman would prove to be an
independent judge.

Judges shall
always be expected to administer a patient hearing to the parties. It is
in their interest. They shall grasp the law as well as facts. With the
passage of time, they shall know who is a good and genuine lawyer and
who merely wants to exploit his slogans of “Zinda Baad and Murda Baad”.

A good and
patient hearing would inculcate a habit of nurturing a judicial
approach. A judicial officer is not expected to approach the court with
any preconceived notions. An open mind, which is very rare, a judicial
unconcern, nonexistent in many people, constitute the virtues that make
independent judges. Kindly look around and then judge as to who
constitutes the independent judiciary and who does not. Judge not that
ye be not judged. Don’t speak in the court and don’t make remarks that
entail upon expression of opinion. If media reporting is correct, we
know of numerous speaker judges who decide the case on the first day of
hearing, without hearing. By doing so, they often make mistakes.
Sometimes these mistakes are publically identified and overruled by
courts of appeal, with all the powers to substitute mistakes of their
own.

When a judge
makes remarks in the court, relevant or irrelevant but mostly
irrelevant, most of the people interested take a message and start
exploiting either the judge or the situation. In high profile cases
involving the government and the politicians, as the case may be, they
endeavour to grind their axe to the maximum. The only person defamed,
disrespected and distrusted in such scenario is judge and judge alone.
After all judges of independent judiciary have no agenda of their own.

Judges are
expected to do justice in accordance with law, and not by making law.
For centuries, English judges deceived each other in to thinking that
they really applied the law made by parliament, that their job was only
to interpret law and not to make law or give law. Once Lord Denning gave
a dissenting judgment on which judge Simon got really annoyed. Take a
note of how he described the dissenting opinion. He said and I quote,
“It was a naked usurpation of the legislative function under the thin
disguise of interpretation.” The naked usurpation does not indicate
independence. I am referring to the British and American judiciary—but
how and why do you think that I am not referring to them?

Judges are
expected not to cultivate bias and prejudices in cases they hear. These
are base characteristics of human nature. High judicial status immunises
men and women from childlike displays of petulance and prejudice. An
independent judiciary does not have judges with bias, petulance and
prejudices.

Judges are
expected to have a deep sense and feeling of self-respect. Judges who
have no self-respect, create numerous gods for themselves, some visible
and some invisible. They share their files with parties to the
litigation. Worst part of the tragedy is that when such matters surface,
they do not feel insulted. A gentleman is expected to react when it
comes to self-respect. Judges of independent judiciary do not act in a
manner that consequents upon their own insult, unless they are bent upon
achieving some target of their own. So, they ought to be strong without
being rude and be polite without being weak. Do not be weak like a
judge who disappointed President Roosevelt of the United States and
forced him to make remarks about judge Oliver Wendel Homes of the
Supreme Court. He said and I quote, “I could carve out of a banana a
judge with more backbone than that of Oliver Wendel Homes”. Independent
judges have genuine backbones of their own.

Judges are not
expected to speak unnecessarily in court. It is not the bounden duty of a
judge to make comments on every topic even if alien to his
comprehension. The more detached a judicial comment is from contemporary
ideas and ideals, the more extensive the consequent publicity. Some
judges have achieved a considerable degree of expertise in making such
statements and in displaying immunity from contemporary knowledge and
concerns.

Too often
judges do not own up to their need for continuing education. They
frequently compound their reluctance to recognise their non-expertise
with a readiness to express themselves in court on all type of subjects
about which they know little or nothing, in terms derived neither from
the common law nor from common sense.

It is a sine
qua non to have judicial approach in every lis that comes up for
adjudication and to maintain a balance between crime and punishment. A
judge at Ipswich Crown Court, England, who lacked judicial approach and a
sense of balance between crime and punishment, imposed fine on a rapist
rather than sentencing him to prison, after finding that his teenage
victim, who had innocently accepted a lift in his car, was “guilty of a
great deal of contributory negligence”.

As for the
important aspect of corruption among judges, the lesser said the better
it is, because a corrupt judge is not a judge at all, much less,
independent. Better it is to be a broker.

In a humble
expression, I conclude my submissions as to what type of a judge one
ought to be. Such judges make an independent judiciary. You can conclude
accordingly. In the last six years, what I have been able to conclude
is that only bars have become independent.

I, for one,
have serious reservations about the manner and mode of selection of
judges in the superior judiciary. With the passage of time it will make
judges subservient to not one but many governmental as well as political
entities. The earlier mode of selection, very well known to all of you,
was more honourable as well as independent. The misuse of the earlier
mode by some of the people concerned has probably forced the legislature
to adopt the new course. Someday, it is seriously going to hamper the
independence of judiciary.

In the given
context, amongst the civil judges, the district and session judges, the
members of the bar who are aspiring to become judges and, above all, my
brothers in the superior judiciary, if only one soul agrees to what I
have submitted, I believe the purpose of making such submissions, has
been well served.